Defamation, a cause of action intended to protect our reputations, is a weapon politicians and large corporations can and have used to stifle political dissent.

By Spencer Keys

Imagine for a moment that you are frustrated with a factory in your neighbourhood and take to Twitter to express your views. Let’s say you luck out and say something so witty, insightful, and devastating that it is retweeted hundreds or thousands of times. You pat yourself on the back and move on with your day. More than a year later there’s a knock on your door from a process server. 

The company who owns that factory is suing you for defamation and your Kafkaesque nightmare begins. They are not interested in settling despite the enormous costs to themselves because they are keen to make an example of you, and they’re asking for so much money that you have no choice but to defend yourself. You are uninsured for defamation but you get a lawyer. Before anything really happens you already owe $10,000 and are put on a payment plan. Soon your bills are in excess of $50,000—again, without much having happened—and unless you can start paying $2,000 a month, your firm drops you and nobody else is willing to take you on. It’s unclear when this will ever end.

This is a fictional story, but it’s not a fictional problem. Defamation, a cause of action intended to protect our reputations, is a weapon that powerful people, from politicians to large corporations, can and have used to stifle political dissent.

The law is not so ridiculous as to leave our muckraker twisting in the wind—parody and satire are perfectly legal in Canada. In a 1980 defamation case, Chief Justice Nemetz of the British Columbia Court of Appeal recognized “caricature, analogy and ludicrous juxtaposition” can help us understand contemporary events better. But what is appropriate and what goes over the line is something that can only be determined by a trial, which is the problem: it is the plaintiff’s right to file a defamation claim, even if it is plainly apparent the allegedly defamatory statements were made in an unserious context, that forces potential everyone to be cautious. Defending a defamation claim carries enormous costs, financially and emotionally, and many organizations, even if insured, do not want the hassle. Even if a full and fair trial would see a defendant exonerated, defamation is the only common law cause of action where damages are simply presumed, making it difficult for a judge to throw out a claim. 

This is particularly pernicious when a defamation claim is made as a strategic lawsuit against public participation (SLAPP), where “suits without substantial merit are brought by private interests to stop citizens from exercising their political rights or to punish them for having done so.” 

SLAPPs are frequently used by corporate interests but have also been used by politicians. In British Columbia, former premier Bill Vander Zalm initiated one against Victoria Daily Times cartoonist Bob Bierman for a cartoon depicting Vander Zalm plucking the wings off a fly. Bierman had the backing of a newspaper publisher and was exonerated, but what risk do individuals carry? User-generated content spread through social media can have a powerful impact on our political perceptions and can be a persuasive means of communicating. While we are aware of numerous cases of SLAPP suits going to trial on matters of defamation, there’s no clear sense of how many cease-and-desist letters have been issued against citizens participating in political action, or how many lawsuits have been settled out of court.

Should the law have a sense of humour? In Canada we have allowed a regime to stay in place that allows the wealthy, privileged, and powerful to punish the jesters of our democracy. In The Pacific Journalism Review, professors Haydon Manning and Robert Phiddian argue that “cartoonists have the joker’s licence to be boundary riders of the representable in the public sphere. It is in their nature to push the boundaries”; what political and social satirists provide is “one important medium where the spin that is epidemic in public life can be countered, one forum where the shameless can be shamed and open secrets spoken.” 

So our laws impede parody and satire, but parody and satire are essential democratic tools. British Columbia adopted anti-SLAPP legislation under the previous NDP government, only to have it reversed in 2001. However, Quebec has recently adopted similar legislation and the Ontario government introduced an anti-SLAPP bill in December last year. These are good things: as the power of broadcast and communications is in the hands of more and more people, we need to protect their democratic right to satirize and mock.

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Spencer Keys, a second year UBC law student, is the 2015 Dalton Camp Award winner, an essay contest established by FRIENDS of Canadian Broadcasting in 2002 to honour the memory of Dalton Camp, a distinguished commentator on Canadian public affairs. This opinion piece is based on his winning essay which is available here.

 

The Dalton Camp Award goes to the winner or winners of an essay competition on the link between democracy and the media in Canada. The Award comes with a prize of $10,000, as well as a bronze cast medal by the late Canadian sculptress Dora de Pédèry-Hunt.